Judge orders accused Fort Hood shooter to have his beard shaved

Source: CNN

A judge has ordered that the beard of Maj. Nidal Hasan, the Army psychiatrist accused of fatally shooting 13 people at Fort Hood, be forcibly shaved ahead of his upcoming military trial, base spokesman Tyler Broadway said Thursday.

Col. Gregory Gross issued the order, which will likely trigger an appeal that would further delay a case that has dragged on since the 2009 mass shooting.

Hasan's attorney had filed an appeal when Gross threatened to order the shaving, but the appeals court said it wouldn't issue a decision until the shaving was actually ordered. Thursday's order by Gross opens the door for that appeal.

The last time he was in court, Hasan told the judge, "Your honor, in the name of almighty Allah, I am a Muslim. I believe that my religion requires me to wear a beard."

36. That doesn't cut Constitutional muster ...

First, under strict scrutiny analysis, the regulation must be related a legitimate government purpose (i.e., as you have correctly identified, interference with the duties of a soldier might be one of them) AND there must be no less offensive alternative than the regulation.

Second, as posted in this thread, that argument fails because the military already makes excepts for soldiers (i.e., Sikhs) that ARE performing the duties of a soldier ... how can they refuse a Constitutional exception for someone, in prison, and therefore not performing the duties of a soldier?

39. That all sounds great in theory, but in reality all rights are subject to restriction

Whether you can present a coherent argument against the restriction or not.

Second, as posted in this thread, that argument fails because the military already makes excepts for soldiers (i.e., Sikhs) that ARE performing the duties of a soldier ... how can they refuse a Constitutional exception for someone, in prison, and therefore not performing the duties of a soldier?

Sounds reasonable, but the exception for Sikhs is established policy. I believe there is also such an exception for Orthodox Jews. There is no such policy for Muslims that I am aware of.

Perhaps Hassan can take the issue to the courts after his murder trial.

104. Defending one's rights against infringement takes more resources than most can muster

If you are willing to work for free, perhaps you can assist me in preparing a suit against the state of California for infringing on my right to own a machine gun. I'll have to file in forma pauperis because I need some expensive dental work.

The authority for the UCMJ derives from Article 1, sec. 8, clause 14, and therefore, while soldiers do not lose all constitutional protections, they can be restricted. For example, in the military I can own literature from the KKK, but I cannot be a member of the KKK.

Second, application of 10 USC 774 allows him to wear religious items as authorized by his Secretary, but Army Reg 670-1 is pretty clear--no beards except for medical reasons.
http://www.apd.army.mil/pdffiles/r670_1.pdf

Third--having a beard would prejudice him with the members who will hear his court martial, and who are well-aware of regulations. They would know he was in violation of code.

Fourth--downthread, you want to know why he can't be discharged, then tried. Well, that would violate his constitutional rights--the military court does have jurisdiction over you once you have left the service, even for acts you did while in service. (Quarles.)

He gets shaved. Better that the judge commits a 1st amendment violation which won't overturn a criminal conviction, than a violation that would, such as a DP or EP one.

107. Easy - because exceptions are discretionary, not mandatory

46. Actually, yeah

the military puts lots of restrictions on your rights.

You want to freely express yourself? Be sure to tell your drill sergeant that it's your right to say what you want and dress how you want and if he says anything about it he's oppressing you and that hurts your feelings.

(2) Male haircuts will conform to the following standards.
(a) The hair on top of the head must be neatly groomed. The length and bulk of the hair may not be excessive or
present a ragged, unkempt, or extreme appearance. The hair must present a tapered appearance. A tapered appearance
is one where the outline of the soldier’s hair conforms to the shape of the head, curving inward to the natural
termination point at the base of the neck. When the hair is combed, it will not fall over the ears or eyebrows, or touch
the collar, except for the closely cut hair at the back of the neck. The block-cut fullness in the back is permitted to a
moderate degree, as long as the tapered look is maintained. In all cases, the bulk or length of hair may not interfere
with the normal wear of headgear (see para 1–8a(1)(a), above) or protective masks or equipment. Males are not
authorized to wear braids, cornrows, or dreadlocks (unkempt, twisted, matted, individual parts of hair) while in uniform
or in civilian clothes on duty. Hair that is clipped closely or shaved to the scalp is authorized.

(b) Males will keep sideburns neatly trimmed. Sideburns may not be flared; the base of the sideburn will be a cleanshaven,
horizontal line. Sideburns will not extend below the lowest part of the exterior ear opening.

(c) Males will keep their face clean-shaven when in uniform or in civilian clothes on duty. Mustaches are permitted;
if worn, males will keep mustaches neatly trimmed, tapered, and tidy. Mustaches will not present a chopped off or
bushy appearance, and no portion of the mustache will cover the upper lip line or extend sideways beyond a vertical
line drawn upward from the corners of the mouth (see figure 1–1). Handlebar mustaches, goatees, and beards are not
authorized. If appropriate medical authority prescribes beard growth, the length required for medical treatment must be
specified. For example, “The length of the beard will not exceed 1⁄4 inch” (see TB MED 287). Soldiers will keep the
growth trimmed to the level specified by appropriate medical authority, but they are not authorized to shape the growth
into goatees, or “Fu Manchu” or handlebar mustaches.

86. because uniform regulations make no allowances for religion.

uniform regulations make no allowances for that. Just like there are DoD regulations that say you can't cross a picket line to work as a scab or protest in uniform.
Based on my experiences with the British Air Force, the Brits would be more lenient. I knew an RAF officer that was a Sikh, and the turban was a nonissue to them.

106. He voluntarily joined the Army and abided by regulations

He is still in the military, and will be judged by a panel of officers.

If he is allowed to keep the beard, he could later claim ineffective assistance of counsel, on the ground that his lawyer advised him to keep the beard, but having the beard was prejudicial to him.

It is not unusual for criminal defendants to ask and receive odd things, and then turn around and claim that they did not receive a fair trial as a consequence of the very thing they themselves asked for or did.

Some defendants use this as a strategy.

Regardless of what this defendant may be planning, he is of exceptional intelligence and knowledge in the area of psychology. That he would use this intelligence and knowledge to engage in some form of manipulation of the process and those in it, does not strike me as unusual at all.

The judge is focused on providing a fair trial and reducing appealable errors.

33. He'll be discharged after his conviction and before his execution

87. Discharge from the military would mean no trial.

The military couldn't try him, he wouldn't be in the military and because they've already charged him, the judge would have no choice but to dismiss the charges. The federal courts couldn't take it up because he's already been charged at the federal level.

10. See Response #9 n/t

94. He is a service member in a military prison

Just like a prisoner in a civilian prison, he has to abide by regs. Military personnel are not allowed to wear beards, except for some Sikhs that have been given prior approval before formal enlistment.

Military personnel. Prisoner. He doesn't get to choose what he wants to do.

Service members can be charged and convicted for not obeying regs, btw, not just discharged.

35. If people were tried only based on what they did and not what they thought, the term "hate crime"...

...would have no meaning.

Motivation is always relevant in criminal trials. Malice aforethought may be the only thing that makes killing a murder as opposed to manslaughter. Premeditation is the difference between two degrees of murder.

44. I'd like to see him shaved and have his hands removed.

57. Because ...

I support the U.S. Constitution.

But don't get me, or my argument twisted. I am not defending him from being tried for the crimes for which he is accused. Hell no!

He is accused of killing and wounding a bunch of people ... He should be tried for that. Does the fact that these people were soldiers matter? Does the fact that he is an Islamist matter? I don't really know, but I hope not, though it appears at the root of many of those arguing.

My defense is rooting in my refusal to sit back and watch some butt chapped "Judge" trample on someone's Constitutional rights, even under these F'd up circumstances.

And face it ... this is all about a pissing match where one side is relying on legitimate/organizational authority and the other side is protected by the U.S. Constitution.

73. To be fair

He's not defending the heinous acts Hassan committed, he's saying that Hassan should be allowed to keep his beard if it's in accordance with his religion. I personally think he should have to shave it.

105. Nothing in Islam says he has to have a beard

115. Not that it matters to me, but the Xian bible has prohibitions against shaving...one

thing most contemporary TRVE BELIEVERS don't much care about any more, along with the abominations of eating shellfish and wearing clothes made of different materials. Where is the line beyond which some random religion's sacrament doesn't have to be respected? Marijuana and Peyote are important elements of some religions, which unfortunately for them, don't have a hell of a lot of political power. What if I invent a church that mandates walking in public with my penis hanging out and urinating on things that are yellow in color? Is there some rational reason to prohibit that?

120. One fuckup doesn't justify all the others.

You're arguing for a particular exception for a particular religion, most of us are saying fuck the guy, he's no better than some asshole who takes a job as a pharmacist then refuses to dispense certain medications because it damages the tender sensibilities of his idiotic faith.

110. This

Who the hell cares about an other person's beard except as an exercise of institutional power? Which is wholly irrelevant in this case because the man is incarcerated and already subject to institutional power. The guy murdered a bunch of people and will be tried, as he should be. It disgusts me as an American and a human to see this use of power for the sake of power. The objection people have is not about this particular man. Leave aside the religion, military and even Constitutional issues. The government using its power to force a guy to do something as meaningless to the process as shaving his beard is just creepy. I used to think we were better than this, but that was a long time ago.

45. Having the beard will prejudice his trial. The military is going to be scrupulous in this case

and ensuring Hasan has every possible chance of a fair trial.

His peers in the military will judge him. Since its against military regs for a soldier to have a beard, Hasan having a beard will send the wrong message (that he's now a religious extremist) to his peers and that he won't follow standard regulations.

When you join the military you sign away a great deal of your rights, including the right to keep your own grooming standards. You must adhere to the standard in the military or face disciplinary procedures. Hasan knows that. He abided by that for many years without a problem.

Wearing a beard now will be prejudicial to his case and the Army is going to avoid the appearance of that at all costs, including forcible shaving.

72. Why is it so difficult ...

to believe that I would agree that the prosecution's strategy would be to shave Hasan, even forcibly, in order to limit any claim that his appearance prejudiced the jury? That's standard strategy. I've argued jury prejudice, literally hundreds of time ... and I know how to defend the claim.

But I fear, their solution to one problem (i.e., jury bias) will create a much bigger problem (i.e., violation(s) of the Constitution).

122. This POS is still in the military

and as such must obey lawful orders of his superior officers. He is
under the jurisdiction of the authority that convened his courts martial
and as such must first obey those orders then appeal them if he feels
they are wrong. He cannot, due to his faith, pick and choose what
orders he will or will not obey any more than he can select the menu
at the mess hall. My only problem with this matter is why has it taken
this long to bring him to trial?